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Illegal not to act: Could courts save world from climate change?

All governments have a legal duty to protect their citizens from harm. They must therefore do their part to prevent dangerous global warming. And if they fail to act, their citizens can take them to court to compel them.

This legal argument has been tested for the first time in the Netherlands. A court ruled yesterday that the government must do much more than it is currently doing.

The Netherlands was aiming to cut its greenhouse emissions by 17 per cent by 2020, but the court has ordered that they must be cut by 25 per cent in the same time frame.

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“It’s an historic case,” says James Thornton, head of environmental law firm ClientEarth. “It’s revolutionary in terms of requiring the government to do it.”

The Dutch government can appeal against the decision, but if it loses it will have to come up with a plan for achieving the 25 per cent cut by 2020.

Protect and survive

The case could be the first of many. Thornton is already working to bring similar cases to court in the UK, and cases are pending in other European countries. Every country’s legal system may be different, Thornton says, but all enshrine in various ways the principle of protecting citizens from harm – including future generations.

It is this principle that makes them more likely to succeed than previous lawsuits in which individuals or groups sought recompense for losses caused by climate change. For example, the 400 inhabitants of an Alaskan village called Kivalina that is being lost to the sea tried to sue oil companies for the cost of moving the village to higher ground. The suit failed because climate change cannot be pinned on individual countries or companies.

Requiring governments to protect their citizens from climate change “is about giving power to the powerless”, says Thornton.

Many other lawyers agree that countries have a legal obligation to act even in the absence of international treaties on climate change. Earlier this year, a group of them spelled out the legal basis for this&colon; the “Oslo principles“.

Powerful tool

But could court rulings really force countries to cut emissions? Thornton thinks they can. He argues that the law can be a powerful tool for bringing about major changes, such as ending child labour and tackling racial discrimination.

In the US, he says, there are already precedents for this kind of legal action. “The courts order the government to do things and they do it.” For example, in 2009, during George W Bush’s presidency, the US Supreme Court ruled that, as Massachusetts had argued, the federal Environment Protection Agency had the authority to regulate greenhouse gases.

In the UK, though, while courts have often ruled that the government acted wrongly in the past, they have usually refrained from ordering it to take any action. But that changed earlier this year when the UK’s Supreme Court ordered the government to come up with a plan to reduce air pollution by the end of the year, following a case brought by ClientEarth.

Business as usual

The prospect of governments being forced to act on climate change by courts is likely to alarm politicians and corporations alike. Until now, politicians have got away with promising to cut emissions in the future while largely continuing with business as usual.

The European Union, for instance, has pledged to cut greenhouse emissions by 40 per cent by 2030, yet many of its members are pursuing policies – such as tax cuts for oil companies and backing for fracking in the UK – that will make even this modest target impossible to achieve.

A 40 per cent cut by 2040 is not nearly enough to prevent dangerous climate change. What’s needed is for every country to cut emissions by between 25 and 40 per cent before 2020. The Dutch courts went with the lower figure. “The courts have taken the facts of the case as science says they are,” Thornton says.

It is, of course, unlikely that the Netherlands will be able to slash emissions in such a short space of time. Even though this low-lying country stands to lose far more than most countries as the seas rise, it failed even to meet its modest Kyoto target of a 6 per cent reduction by 2010 relative to 1990 emissions.

But if the court ruling is enforced it could at least result in bigger cuts than would have occurred otherwise.

“It doesn’t make it easy,” Thornton says, “but it does make it happen.”

Article amended on 26 June 2015

When this article was first published, some EU and UK targets were muddled. They have now been corrected.